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Ed's Blog

On Tuesday, under suspension of the rules, the House may have a vote to roll back some of the privacy notices required as a condition of the 1999 repeal of the Glass-Steagall Act that allowed virtually unfettered sharing of consumer information by and between financial firms, their affiliates and third parties. Reps. Ed Markey (D-MA) and Joe Barton (R-TX), co-chairs of the Bipartisan Congressional Privacy Caucus, marched down the floor today to demand a recorded vote. Here is a youtube video of part of Mr. Markey's empassioned defense. Under suspension of the rules, an expedited procedure, a bill needs 2/3rds (not 50% +1) to pass and is non-amendable. Unless a member does what Reps. Markey and Barton did today, and demands a vote, the suspension calendar bill list passes en bloc without debate. It is usually used for naming post offices, not bills that should have debate.

In 1999, Markey and Barton had passed actual privacy rights legislation through the House Energy and Commerce Committee as part of Congressional consideration of legislation now known as the Gramm-Leach Bliley Financial Modernization Act (GLBA), which tore down the wall between commercial and investment banking. They argued that if commercial banks, investment banks, insurance companies and other firms were all going to be under the same roof, that consumers needed privacy protection. House leaders, in thrall of the big Wall Street banks, used the then-House Banking (now Financial Services) Committee's weak version of the bill instead. As a sop to privacy groups, they threw in a modest privacy opt-out that applies only in very limited circumstances. Under federal law, most sharing cannot be stopped. As a sop, House leaders agreed to require annual privacy notices. But during all this, they refused to allow Markey and Barton a floor vote on their strong privacy rights proposal because Wall Street wanted their preferred bill to pass, not a fair bill to pass. The Markey-Barton amendment would have prevailed on the floor, so they weren't even allowed to get a vote.

So, we ended up with much more limited privacy notices instead of stronger private protections. While consumers, under GLBA, only have a limited right to optout of the sharing of information and then only in some circumstances, its annual privacy notices serve an important educational purpose. HR 5817, the so-called Eliminate Privacy Notice Confusion Act would eliminate annual notices for certain firms, if they haven't changed their sharing practices.

A better way to go would be to have held a hearing with privacy experts as witnesses and then a committee vote. A better way to go would be to require banks to disclose to consumers what privacy preferences they have previously selected so they can consider whether to change them. A better way to go would be to enact Rep. Jackie Speier's (D-CA) bill, HR 653, the Financial Information Privacy Act of 2011, which strengthens the modest privacy protections that will remain in Gramm-Leach-Bliley, even if HR 5817 weakening its privacy notice requirements, is approved. A large part of Rep. Speier's bill is law already in California, where she passed it as a state Senator. Why hasn't industry agreed to pass her bill on suspension? It is already the law for 20% of the population. Taking away privacy education, even limited privacy education, is the wrong way to go.